Gin a body meet a body

Body #1 being the “Mother Court,” as it describes itself–the United States District Court for the Southern District of New York. Body #2 being the United States Circuit Court #2, the Second Circuit to be precise. Their “meeting,” as Matthew David Brozik notes, makes his guest post of the day before profoundly prescient.

To be more precise, the Circuit mainly agreed with Judge Batts, but found her injunction improvidently issued in light of its subsequent ruling in Tiffany v. eBay because it failed adequately to make an appropriate finding as to irreparable harm–one of the prerequisites a court must establish prior to resorting to the “extreme measure” of a preliminary injunction. (Presumably, especially when there is an issue of prior publication restraint.)

But, back to local news. The AP (per the first link) summarizes it as follows:

The appeals panel agreed with a lower court judge that the two books were substantially similar and that it would be difficult for Colting to prove he had changed Salinger’s work enough so it could be published as protected “fair use” of copyrighted work.

The appeals panel wrote in Salinger v. Colting that Colting and the companies distributing the book “are not likely to prevail in their fair use defense.”

Still, the 2nd Circuit returned the case to the lower court, saying the judge had failed to make a required legal determination as to whether the Salinger estate would be irreparably harmed if Colting’s book were published.

The case was brought to the appeals court to determine if the lower court’s temporary order blocking U.S. publication could remain in place. A trial to determine if the temporary order can be made permanent has not taken place.

The appeals panel noted that blocking Colting’s book risked blocking speech protected by the First Amendment. But it added: “Some uses, however, will so patently infringe another’s copyright, without giving rise to an even colorable fair use defense, that the likely First Amendment value in the use is virtually nonexistent.”

The 2nd Circuit said Colting’s claim that the books were not substantially similar was “manifestly meritless.”

That last bit is actually rather troubling to me, but let’s see where the dust settles on all this. A court actually paying some attention to the irreparable harm issue in an IP case for a change is news–and g00d news–enough to render this at least a middling-good development.

2 comments

Since this book is still effectively banned in the U.S., I have had to order it from Europe. Once I receive my illegal contraband, I intend to read it with relish and know what the protagonists of Fahrenheit 451 must have felt like when having to secretly read items banned by government fiat.

After I have read it in accordance with the customs of a free people who value liberty and free speech, I will report back to you on my own impressions on how much similarity there is – unless you feel that would implicate you in encouraging the heinous and unlawful activity that I am admitting to.

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The Title, the Blog and the Blogger

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, brands, free speech (mostly as it relates to the Internet) and legal issues related to blogging. That may sound like a lot, but it's just a blog.

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